module 6: litigation & other advocacy

Frivolous Definition

no GF arg under current law AND no GF arg for changing existing law.

When does a lawyer's duty to rectify false evidence end?

when final judgment has been affirmed/deadline for appeals has ended

Does a lawyer violate the rule against frivolous claims by asserting a position before fully substantiating all the facts?

No, as long as lawyer has GF belief that facts could reasonably be discovered in order to substantiate the claim

NOT Frivolous EGs (3)

(i) assert a position without first fully substantiating all the facts (as long as lawyer has GF belief that facts could reasonably be discovered to substantiate later);

(ii) assert position knowing that vital evidence can be uncovered only through discovery proceedings; and

(iii) assert a position even though lawyer believes the position will not ultimately prevail.

consequence for making frivolous claims/defense

discipline + sanctions

duty to expedite litigation + exception

expedite litigation consistent w client’s legitimate interests. breach if GF atty would believe delay serves no substantial purpose other than delay

• Exception: financial benefit = NOT LEGIT INTEREST

what counts as a tribunal and what doesn’t count?

• TRIBUNAL: ct, arbitrator (in binding proceeding), admin/govt agency in adjudicative capacity

• NOT TRIBUNAL: mediator (bc non-binding), govt not adjudicating anything

3 duties under duty of candor

• no false statements (of law + of fact)

• no false evidence

• disclose adverse controlling authority if opp. counsel hasn’t done so

rule for no false statements of law [duty of candor]

atty disciplined for knowingly making a false statement of material law to ct OR failing to correct one they previously made.

• NOTE: Good-faith mistake ≠ defense: Discipline can apply even if the lawyer initially believed the statement was correct.

rule for no false statements of fact [duty of candor]

Can’t knowingly make false statements of fact to the ct or fail to correct a previously made false statement of material fact;

• APPLIES to arguing in front of ct or submitting affidavit on your own behalf

• DOESN’T APPLY to Ordinary Pleadings, as they are Client Assertions understood to be said by atty on behalf of client. unless eg, you’re knowingly lying for client (eg, lying ab filing date to bypass statute of limitations)

  
  

does atty have duty to volunteer Adverse Facts?

No, UNLESS ex-parte proceeding.

special rules for ex-parte proceedings. here, lawyer must / must not

General Rule: can’t speak to judge/ct officials about merits of the case w/o other side present unless authorized by ct order or law

MUST - must inform judge of all material facts so that judge can make informed decision; duty overrides Confidentiality duty!

MUST NOT - make argument on merits of case without giving adequate/timely notice to the adversary (in which case it no longer counts as ex-parte!)

rule for false evidence [duty of candor]

cannot knowingly offer false evidence (e.g., call a witness they know will lie)

EXCEPTION: criminal defendant’s testimony on his own behalf

when may a lawyer refuse to offer false evidence + exception

May refuse evidence they reasonably believe is false.

• Exception: In a criminal case, the lawyer cannot refuse the D’s own testimony solely because they believe it is false.

in civil matter, when is a lawyer req to disclose client’s harmful facts to court

ex-parte proceedings only!

• why? only one side is present and the other side has no opportunity to offer its version of the fact

A lawyer may counsel a person not to voluntarily give information to an opponent or other party IF

(i) the person is a client, or a relative, employee, or agent of a client; and (ii) the lawyer reasonably believes that the person’s interests will not be harmed by not volunteering the information

A lawyer represents the accused in a criminal case. if the lawyer becomes aware that the defendant/D’s witness is about to testify falsely, what steps should it take?

1. convince D not to lie

2. consider withdrawing (but not req to)

3. tell the court, even if it means revealing CI

duty of fairness to OC: can you violate or disobey a court order/rule?

can’t violate, can disobey!

• can refuse to obey order ONLY IF 1) the refusal is open and transparent and 2) GF assertion that rule/order invalid

duty to preserve impartiality: Can you hire an investigator to talk to prospective jurors?

No, bc of prohibition on atty contact with jurors and the rule against using third-party agents to bypass ethical duties.

what is an option for atty allowed by some states if criminal D insists on lying to court?

atty can take narrative approach, where they ask open-Ended Questions

• BUT, No Reference in Closing: The attorney cannot cite or rely on the perjured testimony during closing arguments.

Post-Trial Juror Contact: here, a lawyer must not communicate with a former jury member or prospective former jury member IF (3 things)

• local law or a court order prohibits such communication;

• the juror has told the lawyer that he does not want to communicate; OR

• the communication involves misrepresentation, coercion, or harassment.

Can you tell ppl other than your client not to talk to opposing counsel

YES IF:

1. affiliated w client (ie, client, relative, client’s agent, or employee); AND

2. you believe their interests wont be harmed by refusing to give up info

   
   

Duty of fairness to opposing party and counsel (3 things)

• no evidence tampering/concealment — must give incriminating evidence to OC;

  • can’t destroy evidence w evidentiary value!! this counts even before there is a lawsuit by OC

• can’t tell ppl non-affiliated w ur client not to talk to opposing counsel

• No frivolous discovery requests; must make reasonably diligent efforts to comply with valid opposing requests

Prohibited Trial Statements: during trial, a lawyer must NOT make public statement If (Gen Rule + 4 egs)

Rule: no public statement if you should know its substantially likely to cause material prejudice

• Refer to irrelevant or inadmissible evidence

• Assert personal knowledge of facts (unless testifying as a witness)

• the performance or results of an examination

• State a personal opinion on the justness of a cause, witness credibility, or guilt/innocence of party

Special Prosecutor Duty re public statements during trial + exception

can’t make comments subst. likely to heighten public condemnation (and make sure your dept doesn’t do the same!) of the accused UNLESS it servs legitimate law-enforcement or public-information purpose

what can atty make public statement ab during case (5 things)

• Info already in public record (eg, trial record, names of folks involved) – (“dry facts”)

• claims/defenses that are involved

• Scheduling or result of any step in litigation

• Any danger concerning a person involved in the case (eg, if D is on the run)

• Right to reply – Can make a statement to protect your client from prejudice thats caused by somebody else, BUT you can only say whats necessary to refute what the other side said

Prohibitions on trial publicity attempt to balance the ____________ protections granted to litigants with the ____________ protections granted to the public and press.

5A for litigants; 1A for press/public

can lawyer act as trial counsel and serve as a witness in the same proceeding + firm imputation

No if lawyer is likely to be a necessary witness, UNLESS

• Testimony relates to an uncontested issue

• Testimony relates to the nature and value of legal services rendered in the case; OR

• Disqualification would cause substantial hardship on the client

NOT IMPUTED to firm unless an underlying conflict of interest applies

Using Threats to Gain Advantage in case - when is this allowed?

threatening criminal charges ONLY; ie, if atty has GF belief adversary is engaging in illegal conduct

atty discovers someone (eg, witness for client) lies on the stand. what should atty do next?

lawyer must take reasonable remedial measures

• this supersedes any confidentiality rules